EX-10.3








    Exhibit 10.3



 




    SELLERS
    OMNIBUS AGREEMENT



 




    Regarding
    Indeck Maine Energy, LLC



 



    This Sellers Omnibus Agreement (this
    “Agreement”) is dated as of August 19,
    2008 by and among Ridgewood Maine, L.L.C., a limited liability
    company formed under the laws of Delaware
    (“RM”), Indeck Energy Services, Inc., a
    corporation formed under the laws of Illinois
    (“IES”) and, solely as to Sections 2(e),
    6, 9(b) and 13, Ridgewood Renewable Power LLC, a Delaware
    limited liability company (the “Managing
    Shareholder”). Terms used herein but not otherwise
    defined shall have the respective meaning ascribed to them in
    the IME Operating Agreement (as defined below).



 




    RECITALS



 



    WHEREAS, RM and IES are all of the members of Indeck
    Maine Energy, L.L.C., a limited liability company formed under
    the laws of Illinois (“IME”); and



 



    WHEREAS, the Amended and Restated Operating Agreement of
    Indeck Maine Energy, L.L.C. made as of June 11, 1997 (the
    “IME Operating Agreement”), sets forth the
    rights and responsibilities of the members of IME (in such
    context, each an “IME Member” and collectively,
    the “IME Members”) with respect to IME and
    their respective membership interests therein (collectively, the
    “IME Membership Interests”); and



 



    WHEREAS, the Managing Shareholder is the managing
    shareholder of certain business trusts formed under the laws of
    Delaware (the “Trusts”), some of which are the
    members and owners of RM; and



 



    WHEREAS, RM, IES and the Managing Shareholder are all of
    the parties to that certain Agreement dated as of
    November 20, 2007 (the “Original
    Agreement”), which the parties hereto desire to amend
    as set forth herein; and



 



    WHEREAS, the Managing Shareholder has negotiated a sale
    of the IME Membership Interests owned by RM and IES, to an
    unaffiliated third party (the “Proposed
    Transaction”);



 



    WHEREAS, RM has loaned funds to IME in the aggregate
    principal amount of $8,150,000 plus accrued interest thereon
    pursuant to a series of promissory notes issued from time to
    time by IME and currently held by RM (the “RM Promissory
    Notes”) and IES and its predecessors have loaned funds
    to IME in the aggregate principal amount of $8,150,000 plus
    accrued interest thereon pursuant to a series of promissory
    notes issued from time to time by IME and currently held by IES
    (the “IES Promissory Notes” and together with
    the RM Promissory Notes, the “Promissory
    Notes”), which Promissory Notes are listed on
    Schedule 1 hereto; and



 



    WHEREAS, RM and IES wish to set forth certain agreements
    between them regarding the Proposed Transaction and other
    related corporate matters.



 



    NOW, THEREFORE, in consideration of the foregoing
    and the mutual agreements contained herein, and for other good
    and valuable consideration, the receipt and sufficiency of which
    are hereby acknowledged, the parties hereto, intending to become
    legally bound, agree as follows:



 



    1.  Amendment of Original Agreement and IME
    Operating Agreement.  



 



    (a) This Agreement supercedes the Original Agreement, which
    is amended and restated in its entirety by this Agreement and
    which Original Agreement is of no further force or effect.



 



    (b) This Agreement constitutes an amendment of the IME
    Operating Agreement in accordance with Section 13.2 thereof
    to the extent that the terms and provisions hereof modify any
    terms and provisions of the IME Operating Agreement as in
    existence prior to the execution and delivery hereof.













 






    2.  Creation of Senior Preferred Membership
    Units; Contribution of Promissory Notes.  



 



    (a) The parties agree that IME shall hereby authorize a new
    class of membership interests in IME called “Senior
    Preferred Membership Interests,” which shall be
    denominated in units and issued by the Managing Shareholder in
    accordance with the provisions of this Agreement. The units of
    Senior Preferred Membership Interests (the “Senior
    Preferred Membership Units”) shall initially consist of
    1,000 authorized units. The holders of Senior Preferred
    Membership Units shall be entitled to preferred allocations of
    distributions from IME as further described in Section 7 of
    this Agreement.



 



    (b) Effective as of the date that is three days prior to
    the scheduled closing date of the Proposed Transaction (the
    “Contribution Date”), RM shall contribute the
    RM Promissory Notes to IME in exchange for the issuance to RM of
    500 Senior Preferred Membership Units (the “RM Senior
    Preferred Units”), which Senior Preferred Membership
    Units shall have an aggregate fair market value equal to the
    aggregate amount of principal and accrued interest under the RM
    Promissory Notes as of the Contribution Date.



 



    (c) Effective as of the Contribution Date, IES shall
    contribute the IES Promissory Notes to IME in exchange for the
    issuance to IES of 500 Senior Preferred Membership Units (the
    “IES Senior Preferred Units”), which Senior
    Preferred Membership Units shall have an aggregate fair market
    value equal to the aggregate amount of principal and accrued
    interest under the IES Promissory Notes as of the Contribution
    Date.



 



    (d) The Senior Preferred Membership Units issued to each of
    RM and IES hereunder shall not be certificated, but shall be
    reflected in the records of IME.



 



    (e) The Managing Shareholder shall provide RM and IES with
    notice of the occurrence of the Contribution Date at least two
    business days prior thereto. On the Contribution Date, RM shall
    deliver all of the RM Promissory Notes in its possession to IME,
    duly endorsed for transfer to IME, and shall provide an
    affidavit and indemnity, reasonably acceptable to the Managing
    Shareholder, with respect to any RM Promissory Notes no longer
    in RM’s possession. On the Contribution Date, IES shall
    deliver all of the IES Promissory Notes in its possession to
    IME, duly endorsed for transfer to IME, and shall provide an
    affidavit and indemnity, reasonably acceptable to the Managing
    Shareholder, with respect to any IES Promissory Notes no longer
    in IES’s possession. IME will cancel the Promissory Notes
    upon its receipt of the Promissory Notes or indemnity and
    affidavits with respect thereto, and issuance of the Senior
    Preferred Membership Units.



 



    3.  IME Membership
    Interests.  Each of RM and IES represents and
    warrants to the other that, including the transactions
    contemplated in Section 2 hereto:



 



    (a) such party is the record and beneficial owner and has
    good and valid title to the IME Membership Interests in its name
    as set forth on Schedule 2, free and clear of all
    Liens (as defined in the PSA or an Alternate Definitive
    Agreement) as of the date hereof and constitute all of such
    party’s direct and indirect right, title and interest in or
    to the Company; and



 



    (b) to the best knowledge of such party, the information
    concerning the IME Membership Interests set forth in
    Schedule 2 hereto is true, complete and accurate,
    and reflects all of the equity interests and proprietary
    interests in the two biomass-fueled electricity generation
    projects located in the State of Maine owned by and operated by
    IME (the “Projects”) since the inception of the
    Projects.



 



    4.  Representation with Respect to PSA or
    Alternative Definitive Agreement.  RM and IES
    agree that the Managing Shareholder is authorized to represent
    and act on behalf of RM and IES in connection with the
    preparation of the Purchase and Sale Agreement dated as of the
    date hereof (as amended from time to time in accordance with the
    terms hereof, the “PSA”) among RM, IES and
    Covanta Energy Corporation (“Covanta”) or of
    another definitive agreement reflecting a Superior Proposal (as
    defined in the PSA) (such other definitive agreement being
    referred to herein as the “Alternate Definitive
    Agreement”) to be executed by IES and RM (or entities
    directly or indirectly owned by the Trusts) as sellers (the
    “Sellers” and individually a
    “Seller”) and the buyer or buyers in such
    Superior Proposal; provided, that except as referenced herein,
    the Alternate Definitive Agreement will not contain terms that
    materially distinguish between RM as a Seller on the one hand
    and IES as a Seller on the other with respect to the sale of the
    IME Membership Interests except in the




    

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    case of such terms that are more adverse to RM as compared to
    IES. The Managing Shareholder will provide IES with weekly
    updates on the status of the negotiation and preparation of the
    PSA or the Alternate Definitive Agreement and, upon the
    execution of the PSA or the Alternate Definitive Agreement, the
    preparation for the closing of the transaction contemplated
    therein.



 



    5.  Approval of PSA or Alternate Definitive
    Agreement.  



 



    (a) IES approves the PSA in the form presented to it on the
    date hereof and is executing and delivering the PSA
    simultaneously with its execution of this Agreement. Once IES
    signs the PSA, any changes adverse to IES in the price and other
    material terms regarding the proposed sale of the IME Membership
    Interests by IES, as set forth in the PSA, shall be subject to
    the prior written consent of IES, and shall not be subsequently
    modified or amended in such manner without the specific prior
    written consent of IES. Without limiting the foregoing, the
    Managing Shareholder acknowledges that any such adverse changes
    to the price, the timing or type of payment, the conditions
    precedent to receiving payment, and the obligations of IES
    regarding the sale of its IME Membership Interests pursuant to
    the PSA are material and shall require IES’ specific prior
    written consent.



 



    (b) In the event that the Proposed Transaction is not
    consummated pursuant to the PSA and the Managing Shareholder
    prepares an Alternate Definitive Agreement, at such time as the
    Alternate Definitive Agreement is in its final form, it shall be
    promptly delivered to IES for the purpose of review and
    execution by IES of the Alternate Definitive Agreement. Should
    IES fail to execute the Alternate Definitive Agreement within 5
    business days after such receipt of the proposed Alternate
    Definitive Agreement, IES shall not participate in the Proposed
    Transaction. Once IES signs the Alternate Definitive Agreement,
    any changes adverse to IES in the price and other material terms
    regarding the proposed sale of the IME Membership Interests by
    IES, as set forth in the Alternate Definitive Agreement, shall
    be subject to the prior written consent of IES, and shall not be
    subsequently modified or amended in such manner without the
    specific prior written consent of IES. Without limiting the
    foregoing, the Managing Shareholder acknowledges that any such
    adverse changes to the price, the timing or type of payment, the
    conditions precedent to receiving payment, and the obligations
    of IES regarding the sale of its IME Membership Interests
    pursuant to the Alternate Definitive Agreement are material and
    shall require IES’ specific prior written consent.



 



    6. Participation by RM.  IES hereby
    acknowledges the right and authority of the Managing Shareholder
    to cause RM to be included in the Proposed Transaction without
    regard to the participation (or lack thereof) of IES in the
    Proposed Transaction. For the avoidance of doubt, should IES
    fail to execute the Alternate Definitive Agreement pursuant to
    Section 5 or fail for any other reason to participate in
    the Proposed Transaction, IES acknowledges that the Managing
    Shareholder may include the IME Membership Interests owned by RM
    in the Proposed Transaction thereby transferring the IME
    Membership Interests owned by RM to Covanta, a subsidiary of
    Covanta or any other buyer or buyers without further obligation
    or liability to IES or need for approval from IME, and IES
    consents to the admission of Covanta, a subsidiary of Covanta or
    such other buyer or buyers as members of IME in such event. The
    Managing Shareholder and RM shall have no liability to IES
    respecting IES’ determination whether to participate in the
    Proposed Transaction and IES acknowledges that it is conducting
    and has conducted its own due diligence with respect to the sale
    of its IME Membership Interests and is not relying on RM or the
    Managing Shareholder.



 



    7. Allocation of Proceeds.  In the
    event the transaction set forth in the PSA or an Alternate
    Definitive Agreement closes and IES participates therein by
    selling its IME Membership Interests, and notwithstanding
    anything in the IME Operating Agreement to the contrary, the
    proceeds of the transaction attributable to the sale of the IME
    Membership Interests shall be allocated between RM and IES and
    paid or utilized as set forth in this Section 7. The
    parties intend such proceeds shall be disbursed promptly at the
    closing of such sale (the date of such disbursement being the
    “Disbursement Date”), except to the extent an
    Alternate Definitive Agreement provides for holdbacks, escrows
    or the like of a portion of the sale proceeds (the
    “Holdback”). Unless an Alternate Definitive
    Agreement expressly provides otherwise, the portion of the
    Holdback attributable to the sale of the IME Membership
    Interests shall be not more than the product of (i) a
    fraction, in which the numerator is the gross proceeds
    receivable from the sale of IME Membership Interests pursuant to
    such Alternate Definitive Agreement, and the denominator is the
    aggregate gross proceeds receivable from the sale




    

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    of all the assets sold pursuant to such Alternate Definitive
    Agreement (excluding the effect of any Holdbacks in each case),
    multiplied by (ii) the aggregate Holdback required under
    such Alternate Definitive Agreement. Sale proceeds subject to
    any Holdback which are allocated to the sale of the IME
    Membership Interests shall be distributed when and as provided
    in such Alternate Definitive Agreement. The proceeds of the
    transaction and any Holdback attributable to the sale of the IME
    Membership Interests shall be allocated among RM and IES and
    paid as follows:



 



    FIRST, to the payment of Transaction Costs (as defined below)
    attributable to the sale of the IME Membership Interests,
    allocated fifty-five percent (55%) from the proceeds otherwise
    to be received by RM and forty-five percent (45%) from the
    proceeds otherwise to be received by IES;



 



    SECOND, to RM and IES as the holders of the Senior Preferred
    Membership Units pro rata up to the fair market value of such
    units as of the Contribution Date as determined in accordance
    with Section 2 hereof;



 



    THIRD, all remaining proceeds will be paid fifty-five percent
    (55%) to RM and forty-five percent (45%) to IES.



 



    8. Transaction Costs.  For purposes
    of this Agreement, the term “Transaction Costs”
    shall mean the sum of (a) the portion of the total
    investment banking fees and expenses payable to Ewing
    Bemiss & Co. arising from a sale pursuant to the PSA
    or an Alternate Definitive Agreement attributable to the sale of
    the IME Membership Interests which shall be deemed equal to the
    product of (i) a fraction in which the numerator is the
    gross proceeds receivable from the sale of IME Membership
    Interests in the Proposed Transaction and the denominator is the
    aggregate gross proceeds receivable from the sale of all the
    assets sold in the Proposed Transaction (including any Holdbacks
    in each case), multiplied by (ii) the aggregate Ewing
    Bemiss & Co. costs, fees and expenses paid plus
    (b) an amount equal to 1.5% of the gross proceeds
    receivable from the sale of the IME Membership Interests in the
    Proposed Transaction. The Managing Shareholder will cause to be
    disbursed from the gross proceeds paid by Covanta, a subsidiary
    of Covanta or another buyer or buyers of the IME Membership
    Interests, the amounts due to Ewing Bemiss & Co. as
    described in this Section 8 part (a), as allocated in
    Section 7 above. The Managing Shareholder will also
    disburse from the gross proceeds paid by Covanta, a subsidiary
    of Covanta or another buyer or buyers of the IME Membership
    Interests, the amounts described in this Section 8 part
    (b), as allocated in Section 7 above, to third parties in
    satisfaction of transaction cost incurred in furtherance of the
    Proposed Transaction.



 



    9. Cross-Indemnification.  



 



    (a) IES hereby agrees to indemnify, defend and save
    harmless RM, its members, managers, employees, officers,
    directors, representatives, successors and assigns (collectively
    “RM Indemnitees”) from and against any and all
    Losses (as defined in the PSA) incurred by RM following the
    Closing (as defined in the PSA) accruing, resulting or arising
    in connection with any breach by IES of Section 4.2 of the
    PSA except to the extent that such Losses result directly from
    the gross negligence or willful misconduct of the RM Indemnitees.



 



    (b) RM and the Managing Shareholder hereby jointly and
    severally agree to indemnify, defend and save harmless IES, its
    members, managers, employees, officers, directors,
    representatives, successors and assigns (collectively
    “IES Indemnitees”) from and against any and all
    Losses (as defined in the PSA) incurred by IES following the
    Closing (as defined in the PSA) accruing, resulting or arising
    in connection with any breach by RM of Section 4.2 of the
    PSA except to the extent that such Losses result directly from
    the gross negligence or willful misconduct of the IES
    Indemnitees.



 



    (c) If this Agreement or any portion hereof is invalidated
    on any ground by any court of competent jurisdiction, the
    parties shall nevertheless indemnify each other to the extent
    permitted by any applicable portion of this Agreement that has
    not been invalidated by any other applicable law.



 



    (d) The provisions of this Agreement shall survive for same
    period of time during which the buyer or a buyer related party
    may make an indemnification claim against IME pursuant to the
    PSA or Alternate Definitive Agreement.



 



    10. Consent and Waiver.  To the
    extent required by the IME Operating Agreement, each of RM and
    IES consents to the sale of the IME Membership Interests of the
    other pursuant to the PSA or an Alternate




    

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    Definitive Agreement and waives any rights it may have to
    acquire such IME Membership Interest in connection with such
    sale or otherwise restrict the transfer thereof.



 



    11. Termination.  Either party
    hereto may terminate this Agreement by one (1) day’s
    prior written notice to the other party hereto (with a copy to
    the Managing Shareholder) if the Proposed Transaction has not
    occurred by March 31, 2009; provided, however, that once
    the PSA or an Alternate Definitive Agreement is executed by the
    parties hereto and so long as the PSA or an Alternate Definitive
    Agreement continues to be in effect, this Agreement may not be
    terminated.



 



    12. Entire Agreement.  Subject to
    the applicable provisions of the IME Operating Agreement, this
    Agreement constitutes the entire agreement among the parties
    with respect to its subject.



 



    13. Agreements for Costs.  The
    Managing Shareholder represents that it has not entered into
    (i) any agreement that obligates IME to pay any cost, debt
    or liability in contravention of the IME Operating Agreement or
    (ii) any agreement other than the PSA or an Alternate
    Definitive Agreement and any “Ancillary Agreements”
    described therein with Covanta or any buyer in a Superior
    Proposal that reduces the purchase price to be paid for the IME
    Membership Interests in order to pay the costs, debts or
    liabilities of any entity other than IME and undertakes that it
    will not enter into any such agreements.



 



    14. Miscellaneous.  This Agreement
    shall be governed and construed in accordance with the laws of
    the State of New York. This Agreement may be executed in several
    counterparts, each of which shall be deemed an original, but all
    of which together shall constitute one and the same instrument.
    Each party shall execute such documents and give such assurances
    as shall be reasonably necessary to perform its obligations
    hereunder. Notices hereunder shall be given as provided in the
    IME Operating Agreement. This Agreement may be amended only by
    an instrument in writing duly executed by the parties hereto.
    Neither this Agreement, nor any portion, right nor obligation
    hereunder, may be assigned by either party, but this Agreement
    shall be binding on any successor in ownership to any of the IME
    Membership Interests prior to the closing of the PSA or an
    Alternate Definitive Agreement so long as this Agreement is in
    effect. IES agrees to cooperate with RM and the Managing
    Shareholder in connection with the negotiation, execution and
    closing of the Proposed Transaction, shall not unreasonably
    withhold or delay its execution and delivery of the PSA or an
    Alternate Definitive Agreement, agrees to execute and deliver
    the PSA or an Alternate Definitive Agreement if it complies with
    the terms of this Agreement and to execute and deliver any other
    document reasonably necessary or appropriate to consummate the
    Proposed Transaction. During the term of this Agreement, each of
    RM and IES agrees not to sell, transfer, pledge or otherwise
    dispose of any IME Membership Interests or Promissory Notes
    owned by it, except pursuant to this Agreement and the PSA or an
    Alternate Definitive Agreement. In the event of a conflict
    between this Agreement and the PSA or an Alternate Definitive
    Agreement, this Agreement shall govern.



 




    [Signature
    page follows]




    

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    IN WITNESS WHEREOF, the parties have executed this Agreement the
    date first written above.



 



    RIDGEWOOD MAINE, L.L.C.



 


			
	 	    By: 
	
    Ridgewood Penobscot Management 

    Corporation, Manager




 


			
	 	    By: 
	
    /s/  Randall
    D. Holmes









    Name:     Randall D. Holmes



			
	 	    Title: 
	
    President




 



    INDECK ENERGY SERVICES, INC.



 


			
	 	    By: 
	
    /s/  Joseph
    M. Oskorep









    Name:     Joseph M. Oskorep



			
	 	    Title: 
	
    Vice President & Controller




 



    RIDGEWOOD RENEWABLE POWER, LLC,

    solely as to Sections 2(e), 6, 9(b) and 13



 


			
	 	    By: 
	
    /s/  Douglas
    R. Wilson









    Name:     Douglas R. Wilson



			
	 	    Title: 
	
    Senior Vice President





    

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